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CONOVER v. MONTEMURO

September 24, 1969

Donald CONOVER, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
Hon. Frank J. MONTEMURO, Jr., Administrative Judge, Family Court Division, Philadelphia Court of Common Pleas; and Leonard Rosengarten, Director, Juvenile Probation, Family Court Division, Philadelphia Court of Common Pleas, Defendants



The opinion of the court was delivered by: FULLAM

 FULLAM, District Judge.

 Plaintiff is a fifteen-year-old boy who has been arrested, forwarded to an "intake interview" conducted by a probation officer of the Philadelphia Juvenile Court, has had a petition of delinquency filed against him by the Probation Department, and has had counsel appointed by a judge of the Juvenile Court. This action was filed on behalf of the named plaintiff and all those similarly situated, seeking to enjoin all further juvenile proceedings until juveniles are granted the right to a preliminary hearing and presentment to a grand jury or an equivalent procedure to test the propriety of referring the juvenile to the Juvenile Court for adjudication. The complaint also seeks a declaratory judgment that the "intake interview", as presently conducted by the Probation Department, violates the juvenile's Fourteenth Amendment rights. The defendants have filed a motion to dismiss, asserting lack of subject-matter jurisdiction, and failure to state a cause of action on which relief can be granted.

 Procedural History

 This action was filed on April 8, 1969. A hearing was held on April 9, 1969 on the plaintiff's petition for a temporary restraining order. I denied this petition on the same day, and an immediate appeal was taken to the Third Circuit Court of Appeals. After the Third Circuit heard oral argument, it was agreed by counsel that no decision on the merits need be made, and eventually the appeal was dismissed. Coincident to these actions, I had considered the plaintiff's request to convene a three-judge district court pursuant to 28 U.S.C. § 2284, and had preliminarily determined that a three-judge court should be convened. However, Chief Judge Hastie of the United States Court of Appeals of this circuit denied plaintiff's petition for the convening of a three-judge court, on the ground that although the plaintiff's complaint challenged the constitutionality of 11 Pa.Stat.Ann. § 246 "the substance of [the] complaint appears to be that the persons charged with the administration and enforcement of that statute are exercising their power and discretion in an improper way, and not that the statute itself requires the allegedly improper practice." A motion for reconsideration was denied for the same reason, i.e., that the conduct giving rise to the plaintiff's claims was not required by the Pennsylvania statute.

 The defendants then filed an answer, and a motion to dismiss.

 Jurisdiction

 Federal subject-matter jurisdiction is asserted under the general federal question statute, 28 U.S.C. § 1331, and the special federal question provisions of 28 U.S.C. § 1343. Injunctive relief is sought pursuant to 42 U.S.C. § 1983, and a declaratory judgment under 28 U.S.C. § 2201.

 Neither 42 U.S.C. § 1983, nor 28 U.S.C. § 2201 is a jurisdictional statute: these enactments merely create forms of action for specific relief, available in the federal courts only when subject-matter jurisdiction is properly grounded on a jurisdictional statute. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194 (1950).

 Section 1343(3) vests jurisdiction in the district courts to adjudicate actions "authorized by law":

 
"To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."

 Plaintiff's declaratory judgment action is authorized by 28 U.S.C. § 2201, and the complaint alleges that there has been a deprivation of the plaintiff's Fourteenth Amendment guarantees of equal protection and due process by the Probation Department of the Philadelphia Juvenile Court. Therefore, this Court has subject-matter jurisdiction under section 1343(3). Baker v. Carr, 369 U.S. 186, 198-204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Moreover, the defendants do not question the appropriateness of considering the request for declaratory relief. See United Public Workers of America (CIO) v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1946).

 For similar reasons, this Court has jurisdiction of the plaintiff's injunction action under section 1983. In fact, the holding of Baker v. ...


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